4.8.2 Incarcerated Defendants

If the defendant has been served, a court may proceed with the hearing even if the defendant is in jail. Many courts erroneously place the burden on the petitioner to file a writ of habeas corpus ad testificandum to ensure the presence of an incarcerated defendant. In Louisiana, a person who is incarcerated has the right to access state and federal courts but that right does not include the right to be physically present at the trial of a civil suit.1  Appellate courts have applied this rule in protective order and child custody cases.2  In a protective order case, the court bears the burden of advancing any costs for a writ of habeas corpus ad testificandum.3

A person who is incarcerated who wishes to secure their presence at a civil trial bears the burden of filing their own writ of habeas corpus ad testificandum.4  Even when they do so, the trial court has the discretion to deny it.5  Reasons for denial of an incarcerated person’s request to be present at a civil hearing can include transportation costs and security risks.6  On the other hand, it is within the trial court’s discretion to take steps to ensure that a defendant who is incarcerated appears in person, and some judges make it a practice to do so. But legally, the petitioner should not bear the responsibility or cost associated with the issuance of the writ unless the incarcerated person is the petitioner in need of protection and is awarded an order for their protection. If a judge sua sponte issues a writ ordering the appearance of an incarcerated defendant, the judge should also advise the defendant of his Fifth Amendment rights because anything the person says in the civil proceeding can be used against them in a related criminal proceeding.

• 1Falcon v. Falcon, 07491, p. 4 (La. App. 5 Cir. 12/27/07), 975 So. 2d 40, 43; Ardoin v. Bourgeois, 2004-1663, p. 3 (La. App. 3 Cir. 11/2/05), 916 So. 2d 329, 333; Proctor v. Calahan, 95-210, p. 4 (La. App. 3 Cir. 8/30/95), 663 So. 2d 110, 112; Autin v. Voronkova, 2015-0407, p. 10 (La. App. 4 Cir. 10/21/15), 177 So. 3d 1067, 1073; Payne v. Ouachita Par. Tax Assessor Custodian of Records, 49,116, p. 8 (La. App. 2 Cir. 7/9/14), 146 So. 3d 675, 680.
• 2Autin, 2015-0407, p. 9, 177 So. 3d at 1073 (stating that the burden is on “incarcerated individuals to take steps to secure their presence in court”); Leeper v. Leeper, 44,777, pp. 6–7 (La. App. 2 Cir. 9/23/09), 21 So. 3d. 1006, 1010.
• 3La. R.S. 46:2134(F).
• 4Id.; Falcon, 07491, p. 4, 975 So. 2d at 43; Autin, 2015-0407, p. 9, 177 So. 3d at 1073 (stating the burden is on “incarcerated individuals to take steps to secure their presence in court”).
• 5Leeper, 44,777, 21 So. 3d at 1010–11; Taylor v. Broom, 526 So. 2d 1367, 1368–69 (La. App. 1 Cir. 1988); see also Wells v. Criminal Dist. Court of Orleans Par., 2016-0181, pp. 3–4 (La. App. 4 Cir. 8/24/16), 198 So. 3d 283, 285–86 (stating that determination to allow incarcerated party to personally appear is in discretion of trial court); Payne, 49,116, p. 8, 146 So. 3d at 680 (stating the same); State v. Kee Food, Inc., 2019-0795, p. 7 (La. App. 1 Cir. 5/11/20), 303 So. 3d 672, 677 (stating the same).
• 6Taylor, 526 So. 2d at 1368–69; see also Wells, 2016-0181, pp. 4–5, 198 So. 3d at 286 (applying a four-factor test for determining whether an incarcerated person’s request to appear in person).